Populist Prosecutorial Nullification

96 N.Y.U. L. Rev., Forthcoming

UNC Legal Studies Research Paper

59 Pages Posted: 16 Apr 2020

See all articles by Kerrel Murray

Kerrel Murray

University of North Carolina School of Law

Date Written: February 21, 2020

Abstract

No one doubts that prosecutors may sometimes decline prosecution notwithstanding factual guilt. Everyone expects prosecutors to prioritize enforcement based on resource limitation and, occasionally, to decline prosecution on a case-by-case basis when they deem justice requires it. Recently, however, some state prosecutors have tested the boundaries of this power by asserting the right to refuse categorically to enforce certain state laws. Examples include refusals to seek the death penalty and refusals to prosecute prostitution or recreational drug use.

There is thus a burgeoning need for a pertinent evaluative framework. To answer that call, this Article offers the first extended analysis of the normative import of the locally elected status of the state prosecutors who make such pledges. In so doing, it finds that local elections make all the difference. There may well be something suspect about unilateral prosecutorial negation of democratically enacted law. Yet there is something distinctly democratic, and thus justifiable, about an elected prosecutor who can claim popular sanction for the exact same act.

This Article first unspools a once-robust American tradition of localized, populist criminal-law non-enforcement, best seen in jury nullification. It then applies democratic theory to construct a normative basis for reviving that tradition in the context of state prosecutors’ categorical non-enforcement. These moves uncover a before-now unappreciated connection: at least where the prosecutor ties her categorical nullification to the polity’s electorally expressed will, she accomplishes wholesale what nullifying juries could once do retail. Appreciating that relationship helps uncover a phenomenon best thought of as populist prosecutorial nullification. Building upon that finding, I set out a novel framework for evaluation of state prosecutors’ categorical non-enforcement that is keyed to the concept of localized popular will.

Keywords: Populism, Jury, Prosecutor, Nullification, Non-enforcement, Democracy, Subsidiarity, Localism, Jury Nullification, Prosecutorial Nullification, Progressive Prosecutor, Progressive Prosecution, Krasner, Rollins

Suggested Citation

Murray, Kerrel, Populist Prosecutorial Nullification (February 21, 2020). 96 N.Y.U. L. Rev., Forthcoming; UNC Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=3542575

Kerrel Murray (Contact Author)

University of North Carolina School of Law ( email )

102 Ridge Road
Chapel Hill, NC 27514
United States

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